Opinion
No. 4971.
Argued November 7, 1961.
Decided January 29, 1962.
1. Where it was held in a prior transfer (Levesque v. Cote, 102 N.H. 297) that the defendant, who purchased real property with his own funds and took title in the joint names of himself and the plaintiff upon the promise of the plaintiff that she would live with the defendant in a common-law husband and wife relationship, was not entitled to enforce in equity any rights in the property, the plaintiff by a subsequent conveyance of her interest to her daughter and a simultaneous reconveyance to her acquired no greater right to obtain equity relief in partition proceedings.
Petition for partition under RSA ch. 538 and for an accounting.
The parties and the real estate involved are the same as in the previous transfer of this case. Levesque v. Cote, 102 N.H. 297. The parties stipulated as to the following facts:
"It is agreed that this action is between the same parties as the action in Equity 7720 and involves the same real estate as was the subject matter of that action.
"Subsequent to the decision of the Supreme Court in 7720, decided December 1, 1959, on December 7, 1959 Mary B. Cote conveyed her interest in the property to her daughter, Marguerite L. Rossignol by deed recorded in Volume 1589, Page 343 of the Hillsborough County Registry of Deeds, said deed being marked in this action Petitioner's Exhibit No. 1. On December 14, 1959 Marguerite L. Rossignol reconveyed her interest in the property to the petitioner, Mary B. Cote, by deed recorded in the Hillsborough County Registry of Deeds, Volume 1589, Page 344, said deed being marked Petitioner's Exhibit 2.
"It is the claim of the petitioner in the present bill in equity that the conveyance by Mary B. Cote to her daughter and the reconveyance broke the joint tenancy and created a tenancy in common and that she is now a tenant in common with the defendant, Albert Levesque, of the property on 13 Prospect Street, and is therefore entitled to maintain this petition for partition under Revised Statutes Annotated . . . 538:1.
"The petitioner relies upon R.S.A. 538, Section 2, for the jurisdiction of the Superior Court to hear partition proceedings. The defendant denies the right of the petitioner to bring this action for partition under the statute; and further denies any right of the petitioner to accounting or to partition on the grounds that the previous Supreme Court decision does not permit partition under any circumstances in this case.
"The petitionee claims that the actions of the petitioner in conveying her interest in the property to her daughter and having a reconveyance of the property has not increased the rights which she had or did not have in the prior case; and that the decision in the prior case indicates first that she is not entitled to maintain the present proceedings, and secondly, that if she were entitled to maintain the present proceedings, that she conveyed nothing to her daughter and received nothing in return since the prior case indicated she had no actual interest in the property.
"It is agreed by the parties that the only change in the facts subsequent to the Supreme Court decision in the prior case are the conveyance and the reconveyance, that the property has been occupied by Albert Levesque at all times, that he has received the rents and has paid or will pay all charges against the real estate, and that at no time have the parties resumed any relationship, either meretricious or otherwise, subsequent to the Supreme Court decision."
The Court dismissed the petition on the basis of the pleadings and an agreed statement of facts. The plaintiff's exceptions to the decree and to the denial of her motion to set aside the decree were reserved and transferred by Griffith, J.
Albert Terrien (by brief and orally), for the plaintiff.
Guertin Widener (Mr. Guertin orally), for the defendant.
This court in the previous transfer of this case sustained the findings, rulings and decree of the Court below with respect to the property involved, the pertinent parts of which were as follows:
"The Court finds that the petitionee contributed nothing to the purchase of the joint property. The Court further finds that while the purchase of the property in joint tenancy was not founded upon any express promise of the petitionee to act as housekeeper for petitioner so long as he should live, neither was it intended as an outright gift but rather upon the promise that petitioner and petitionee should live out their lives in a common law husband and wife relationship.
"The Court rules that the creation of the joint tenancy relationship was based upon the meretricious relationship of the parties and that neither petitioner nor petitionee is entitled to enforce any rights in the property in a court of equity; therefore, the petition is dismissed." Levesque v. Cote, supra, 298, 299.
The subsequent conveyance by the plaintiff of her interest in the property to her daughter and the simultaneous reconveyance of the same property could not endow the plaintiff with any greater right to obtain the relief sought by these proceedings than Levesque had in the prior case.
Petition dismissed.
DUNCAN, J., dissented; the others concurred.
Our decision in Levesque v. Cote, 102 N.H. 297, left the title to the real estate in question in joint tenancy, where it was found. It is not my understanding, however, that the decision purported to hold that the parties would forever after be barred from enforcing in the courts any of the incidents of title so held, especially if those rights were enforceable without the aid of equity. See Hale v. Jaques, 69 N.H. 411. In my opinion the plaintiff herein is now entitled to partition as a tenant in common (Mulvanity v. Nute, 95 N.H. 526, 528), and as such, to one-half of the proceeds of any partition sale of the premises in accordance with the presumption that the interests of cotenants are equal. 86 C.J.S. 378. The prior decision precludes the defendant herein from establishing that his interest is any greater than one-half by reason of any expenditures made by him prior thereto in furtherance of the illegal agreement. Levesque v. Cote, supra.
In consistency, I would also permit the plaintiff to recover one-half of the net income received by the defendant from the property since that decision. See Zytka v. Dmochowski, 302 Mass. 63.
As I view the decision reached today by the majority, it permits the defendant to appropriate to himself the full use and income of the property which the previous decision had the effect of denying to him.